This 'standard practice' is fraught with risk. Some hotels end up parking on the road. The insufficient parking often forces you to avail of the valet facility. What if the parking attendant is involved in an accident? When your car is picked up for servicing, the driver gives you a receipt with an itemised list of what's in the dashboard and boot. That may not be possible in valet parking but what if valuables are stolen? We don't need to be paranoid but haven't we heard of cases where contraband stuff, used condoms and booze bottles were left behind in valet parked vehicles? And what if your car is damaged or worse, stolen? Will you read the disclaimer, curse your fate and take a cab home? First of all, the owner doesn't usually sign the tag. So at best, there's only implied acceptance of the disclaimer!
The provision for deficiency in service under the Consumer Protection Act is wide enough to fasten liability on business establishments for damage and theft of your vehicle. The common defence which is the disclaimer on your parking ticket has not passed muster with our consumer fora. The National Consumer Disputes Redressal Commission held in Hotel Hyatt Regency Vs Atul Virmani that "there is hardly any time for the consumer to read docket conditions because there would be a fleet of cars entering and exiting the hotel. When a uniformed liveried valet with his imposing figure asks for the car keys he exudes confidence. For the management of a 5 Star Hotel to shirk responsibility does not augur well. The hotel is liable for the negligence of its staff."
Another standard argument is that no fee is charged for the valet parking facility and the owner is therefore not a consumer under the Act. The national commission clarified that the hotel "would be covered by deficiency in service as it is charging for other services". It relied upon the rationale laid down in a landmark decision of the Supreme Court in Savita Garg Vs Director, National Heart Institute, that "If hospital authorities charge high fees for treating some patients and do not charge fees for others, then there is a subsidy provided to the patients who are treated free." If there is negligence in treating those free patients, they will also be covered by deficiency in service and the hospital would be liable for medical negligence and payment of compensation.
In the Virmani case, the National Commission went on to add that "if the hotel authorities cannot keep the car safely, they should have put a big board at the entrance proclaiming 'Beware giving car keys to the valet of this hotel does not ensure its safety. The Management is not responsible for theft of the car".
Whether valet parking is done by the business establishment directly or by an outsourced agency is immaterial. Handing over vehicle keys to the valet constitutes 'bailment' covered by Sec 148 of the Contract Act. The bailee or the valet is bound to return the vehicle to the bailor or the owner on demand. This was the gist of the National Commission's judgment in Mahesh Enterprises Vs. Arun Kumar Gumber & Ors.
A few valet parked cars were damaged when a tree fell on them in a corporate hospital in Chennai. The test here is whether there was negligence on the part of the valet. Otherwise, the doctrine of Force Majeure or Act of God will apply. The remedy in such cases may lie with insurance, provided the policy has comprehensive cover and not mere third party liability.
In shopping malls, parking ticket fees are quite fancy and based on categories like premium or ordinary and on an hourly basis. That too with the rider 'Parking At Owners Risk'! If they collect a fee, shouldn't they take care of the vehicles? To get licences and their completion certificate, these malls need to show parking space, making it an essential service. Will you pay to use the toilets too? Footfalls are obviously not the same but if valet parking in hotels is a free facility, why should self parking in malls be charged at all? Park that thought.
An excerpt from one of the 86 issues dealt with in the book Justice For All by Sanjay Pinto to be released on Friday. You can order your copy here.